People v. Donley CA5

Filed 6/2/15 P. v. Donley CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

THE PEOPLE, F067912 Plaintiff and Respondent, (Super. Ct. No. SCR013509) v.

SHAWN ARLIN DONLEY, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Madera County. Ernest J. LiCalsi, Judge. Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Cornell, J. and Poochigian, J.

A jury convicted appellant Shawn Arlin Donley of assault with a deadly weapon (count 1/§ 245, subd. (a)(1))1 and two counts of felony vandalism (counts 2 & 3/§ 594, subd. (b)(1)). In a separate proceeding, the court found true four prior prison term enhancements (§ 667.5, subd. (b)). On appeal, Donley contends his sentence violates: (1) section 654’s prohibition against multiple punishment; and (2) the constitutional prohibition against double jeopardy. We will find merit to Donley’s first contention and modify his sentence accordingly. In all other respects, we affirm. FACTS The Trial Donley was Angela Floyd’s ex-fiancé and was involved in a relationship with her for almost three years. By January 2013, the relationship had ended and Floyd was living alone in Ahwahnee, in a studio apartment that was attached to the garage of a house belonging to Marius Crisan, a retired police sergeant. On January 17, 2013, Donley made several calls to Floyd during which he told her he wanted to take Floyd a file cabinet that belonged to her. Floyd told him not to come over, that she did not want to be with him anymore, and that he was not welcome on the property. Nevertheless, at around noon that day, Donley drove his truck to see Floyd. Crisan overheard Donley arguing with Floyd in her room and told him to leave, which he eventually did. At approximately 1:00 p.m., Donley returned to Floyd’s residence with her file cabinet in the back of his truck and pushed the cabinet off the truck. As Donley yelled at Floyd through a closed door, Crisan again confronted Donley and told him to leave. Donley replied, “Are you going to make me go, old man?” Crisan replied, “Well, if I have to, I will.” Donley got angrier and started walking toward Crisan, which prompted Crisan to pull out a gun and point it at Donley. After a few more comments were